Circumstantial evidence

Tom Dooley was convicted and hanged for murder. The conviction was based solely on circumstancial evidence. There were no witnesses to the actual crime and no physical evidence whatsoever, was found. John Foster West quotes a modern day lawyer (Lift up you head, Tom Dooley, p. 128) for concluding, that the evidence simply wasn't enough to convict Tom Dooley in a modern  trial. I will get back to his arguments later.

But first, let me look into the circumstantial evidence in question. Before going into the matter of things, let me remind you, that we only know a small number of the testimonies of the trial. The ones that the judges found to be important enough to send to the Supreme Court in connection with Tom's appeals.  Therefore there may have been other testimonies or parts of testimonies, that we don't know today, but I think it will be reasonable to think, that if any testimonies had incriminated Tom more, the judges wouldn't have hesitated to send them to the Supreme Court as well; simply to justify their own decision of Tom's guilt. I therefore have to believe, that the testimonies of the withnesses for the state, are the ones that did most damage to Tom's case.

So what did the witnesses say about Tom killing Laura? Actually only one witness mentions Tom talking about killing anyone. Rufus D. Hall, Tom's second cousin testified, that on a day in mid May, Tom had visited him at his house, returning from preaching. At that occasion Tom had told Hall that he would kill those who infected him with syphilis. No names were mentioned. Hall had adviced Tom not to kill anyone.

Pauline Foster, key witness for the prosecution, never actually pointed at Tom as being the murderer. At least not during trial. What she did say was "Two or three days before their parting (Tom and Ann Melton), I heard James Melton say in the presence of the prisoner (Tom) that it was reported by the Hendrickses that Tom had killed Laura Foster." This conversation took place around the 24th of June, a month after the murder, when a lot of stories of what happened to Laura Foster was told in the area.  And all that Pauline actually testified was, the she had heard someone telling Tom, that HE had heard that someone else was thinking, Tom was the killer. That amounts to hearsay in the second degree.

At a later time, Pauline herself, prompted by Ben Ferguson, the deputy sheriff that arrested Tom, had said "I and Dula killed her (Laura Foster) and then I went away to Tennessee". She had told James Melton that this was said as a joke, and she repeated this to Ann Melton and later at trial. At one time, Pauline had said to an unknown George, probably George Washington Anderson, that she "would swear a lie any time for Tom Dula, wouldn't you George?" We don't know what George replied, and later Pauline claimed, that this was also said as a joke.

Besides this there is nothing in Paulines testimony that involves Tom in the murder, except a few mentions of subdued conversations between Tom and Ann. Actually most of her testimony contains excuses for herself. Some of her testimony was even in favor of Tom, like when she testified, that she had heard, that Laura had run away with a colored man and that Laura's father, Wilson Foster, had agreed to that. At court she stated "The reason I supposed perhaps a colored man, was in consequence of information I received from others..." She had also promised Wilson Foster on the evening of Laura's disappearance, that for one quart of liquor, she could get his horse back. This implies that she knew where the horse was, even if she later stated in court that also this statement was said as a joke. On the morning that Laura disappeared, she was in the field planting corn, and when she went back to the house before breakfast, to milk the cows, she found Tom busy in conversation with Ann Melton. In court she stated: "I understand the Bates Place and the Shop Place to be the same. It is in the direction of the sunrise from James Melton's; I think I could have seen Dula that Friday morning while I was milking if he went towards the Bates place." In this statement she testified that Tom Dooley couldn't have gone to Bates Place Friday morning as supposed by the prosecution.

So lets look into what the procecution thought had happened and what supports and what speaks against it. The procecution suggested that Tom Dooley murdered Laura Foster because she had infected him with syphilis. On the morning of her disappearance, Tom had come to her home, and they decided to meet later at Bates Place. Laura took her father's horse and rode along the river, while Tom on foot took a path through the hills. The two of them met at Bates Place either in the morning or later that Friday, where Tom killed her by a single stab in the heart. Later he buried her in a grave, that he had dug on the night between Thursday and Friday, maybe by the help of Ann Melton. Now lets look at the evidence for the above.

Lotty Foster home

The photo on the left is taken from present day Gladys Fork Road in Elkville in direction of Lotty Fosters old home. The cabin were probably some distance behind the second phone pole from the left, where now bushes are covering the ground.

We know from the testimony of Lotty Foster, that Tom came to her Thursday and borrowed a mattock. He left Loty Fosters in direction of his mothers house, and Lotty didn't get her mattock back until 3 or 4 days later, even if she sent for it. Only at the second request did Tom return the mattock. Tom gave as reason for borrowing it, that he was going to work on the path between his mothers house and Lotty Foster's house to widen it and make it easier to travel at night. The next day, Lotty Foster observed "two places where digging had occurred on the pathway towards Dula's mothers house. This was 200 yards from the grave."

Another witness, Martha Gilbert testified: "On the wednesday or Thursday before the Friday of Laura Foster's disappearance I saw the prisoner on the road between Mrs. Dula's and Lotty Foster's. He had a mattock and was skelping alongside the path with it. I asked him what he was doing. He said he was fixing the path and making the road wider, so he could go along of nights. It was between two-hundred or three-hundred yards from where I saw him standing to the grave....It was about one-hundred yards from where he was standing to Mrs. Dula's, his mothers house." Later she was recalled by the prosecution and stated: "Along where I saw the prisoner skelping the path the day I alluded to, it wasn't steep. The path was steep and broken further on towards Mrs. Dula's but not towards Lotty Foster's."

Thomas Foster, Ann Melton's younger brother also had something to say: "..The prisoner came to the house of my mother, Lotty Foster and wanted to borrow a mattock. He said he wanted to work some devilment out of himself. I saw him with the mattock going toward his home. It was after breakfast that he came after the mattock."

Finally, Mrs. Mary Dula, Tom's mother said in her testimony: "On the path between my house and Lotty Foster's there was a very narrow place, steep and bad for cattle to pass. I don't know who worked on it, but I noticed as I passed along on that Friday that it had been recently worked. It had been some two or three days before that, I had passed along it."

These testmonies leaves no doubt in my mind, that Tom had actually borrowed the mattock to work on the path. But of course he could still have used it for other purposes as well.

James Isbell mentions in his testimony of finding the grave: "After taking out the earth (from the grave), I saw prints of what appeared to have been a mattock in the hard side of the grave." Maybe James Isbell was right, and there were traces of a mattock in the grave, but did that point at Tom being the grave digger? Not necessarily. Other testimonies point in another direction.

George Washington Anderson testified: I was at James Melton's on Thursday night before the Friday Laura Foster disappeared. James Melton, Jonathan Gilbert and Pauline Foster was there. Ann Melton was not there". Tom Dooley is not mentioned and he probably wasn't there either. Later Anderson continued: "I went by the next morning. Ann Melton was then on the bed sick. Her shoes were wet. I did not see her dress. The folks were eating breakfast."

Mary Dula stated: "Thomas was not at my house early in the morning of that Friday. I left the house after early breakfast that day and got back just before dinner hour. I found him laying on the bed." Remember that dinner at that time was the meal eaten around noon.

Pauline Foster in one of here statements said: "Ann Melton left her  husband's house on the Thursday before that Friday in May after dinner (still the noon meal),with a canteen of liquor, which had been filled for the prisoner, and went in the direction of the Ridge Road. She was absent from that time until an hour before day on Friday. She came and got in bed with me. I left her in bed when I went to work. Her dress was wet and so were her shoes. She lay in bed until after breakfast. This was the morning I mentioned that Dula stood over her and talked with her while she was in bed."

This gives reason to believe, that neither Tom nor Ann were at their homes on the night between Thursday and Friday. But were they busy digging a grave for Laura Foster as the Prosecution believed?

Dr. George Carter testified: "The hole in which it (Laura's body) lay was two and a half feet deep, very narrow, and not long enough for the body." To me this sounds more, like the hole was dug in a hurry after the murder, than two people spending a whole evening and night, digging it.

Pauline Foster: "Ann Melton remarked when she went off on that Thursday with the canteen, that she was going to her mothers" and later "(Ann) said that her and her mother and Dula had laid out that night and drunk that canteen of liquor." The latter statement comes from an unidentified transcript of  Pauline's testimony, that contains a far bit more information, than the officiel statements, send by judge Buxton to the Supreme Court. So Ann claimed that both she and Tom was engaged in other things that digging a grave. If the three of them actually drank a canteen of home burned liquor during the night (a canteen could hold anything between a quart and a gallon), this could be the reason why George W. Anderson found Ann Melton sick on the bed in the morning.

This statement was actually confirmed by judge Shipp in his resume of the second trial: "The canteen in which the liquor was brought to her house (Ann Melton's) by the messenger on Thursday was found by a witness on Friday morning under a tree where Ann Melton had told her it was. There was a small quantity of liquor left in the canteen." This seems to confirm that Ann had told Pauline the truth about what she and Tom had been doing on the night between Thursday and Friday.

Personally I find that the evidence of Tom (and Ann) digging the grave on Thursday evening and night is extremely weak. And this further leads to one of what I call "the questions that wasn't asked". Looking at the case in hindsight, there are a lot of questions that I would like to know the answers of. Maybe the questions weren't asked or maybe the answers were just not sent to the Supreme Court. This is one of them. Either the prosecutor or the defender should have asked Lotty Foster if it were true, what Ann had told Pauline. Were the three of them really staying out all night, sharing a canteen full of liquor? If she replied yes, it would, if not have cleared Tom and Ann, then at least have created doubt if they dug the grave before the murder.  If she said no, it would have implied, that Ann was lying and tghereby strenthening the prosecution's case. In both cases the answer would have been relevant for the Supreme Court. The only reason I see, is that either it was not asked or it was asked and that Lotty confirmed Ann's statement. If anybody wanted to make sure Tom was convicted, there would be a good reason not to forward such part of the testimony.

Next part is the actual murder. Except from the above mentioned exclamation from a drunk Pauline Foster, none of the witnesses accused Tom of killing Laura, and he never told anyone, that he had. He told Rufus Hall that he wanted to kill the one who gave he syphilis, but first of all this could have been said in a moment of temper, and second he never mentioned, that Laura was the one that infected him. The only one ever claiming to have killed Laura Foster was Ann Melton who, according to Pauline Fosters testimony, at one time told her, that she had killed Laura, and if she (Pauline) ever told anybody, she would kill her too.

On Saturday, after Laura's disappearance Pauline said to Tom "I thought you had run away with Laura Foster" to which Tom replied "I have no use for Laura Foster". This was in court interpreted as an expression of Tom knowing that Laura was dead, but actually it might just as well have meant, that he had no longer any use for Laura because he had found other girls. Just before he left Elkville to go to Tennessee,  Tom visited Ann Melton, while Pauline was present. At one time the three of them was outside the house, and Tom told Pauline, that he was leaving, "because they were telling lies about him"; "they" probably being the Hendrickses mentioned above. Even at that time he didn't admit to his two girlfriends, that he had anything to do with the murder.

Betsy Scott was the witness that caused most damage to Tom's case. She testified: "I saw Laura on the Friday morning she was missing. She was riding her fathers mare bareback with a bundle of clothes in her lap and was coming from her father's past A. Scott's house, where I met her in the road." After an objection from the defense, she was allowed to continue. "I asked Laura if Mr. Dula had come. She said yes, he came just before day. I asked where he was. She said he had gone around to flank Manda Barnes'. I Said if it was me I would have been further on the road by this time. She said she started as soon as she could. I asked where she expected to meet him. She said at the Bates place." Mrs. Scott told the court, that she had asked these questions in continuation of a conversation she had had with Laura one or two days earlier. In contrast to popular tradition according to which Laura had told several people that she was running away with Tom Dooley, this was acutally the only hint that such and agreement existed between Tom and Laura. If we take a closer look, Betsy Scott makes sure not to mention Tom. She only says "Mr. Dula", and we know today, that the area was actually crawling with Mr. Dulas, so it could have been any Dula. And we don't  even know if Betsy Scott was telling the truth. Later rumors knew, that Betsy Scott was known to be poor, and that she would do anything for money. I don't know if she did lie, but no-one confirmed this particular testimony.

According to tradition Wilson Foster had mentioned in court, that Laura had a conversation with Tom on the early morning of her disappearance! But actually he never said anything like it. What he actually said was: "The night before she (Laura) disappeared, the witness (Wilson) went to bed leaving Laura still up. About an hour before daybreak, she got up, went outside and stayed for a few minutes. When she got back in, she went to the closet, and he thought she opened it. He then tought she went to bed again. When he awoke afterwards, he found Laura was not in her bed. This was about daybreak." Absolutely no mention of any morning conversation outside the house, whatsoever.

Two witnesses told of Toms whereabouts on that morning, Carl or Cal Carlton and Hezekiah Kendall or Kindall. This is true, and those two were among those, that Tom claimed had lied about what happened in his final statement at the gallows. But maybe they didn't really lie. Maybe they just remembered the day of the meeting wrong. We know for sure, that Tom had visited Laura for a couple of months before she disappeared. So he may have taken the path through the hills at any time during this period. Even the first trial was held more than four months after Laura's disappearance, and at a time, when calendars was not in common use*, it would be easy to confuse two or more dates. Times of the year was often described by the activities carried out like "planting" or "harvesting".

* According to John Foster West, as late as in the 1920's it was necessary to walk to the nearest store to see a calendar. (Lift Up Your Head, Tom Dooley).

But let's look into their testimonies: Carl Carlton simply told, that he saw Tom Dooley on the path which lead through his (Carlton's) yard towards the Bates place. It was a little after sunup (around 6.30 AM). Tom had asked him if the path lead to Kendall's place. After this brief conversation Tom contnued his way. According to Carlton he came in the direction of Wilson Foster's and he was on foot. Hezekiah Kendall stated: "I saw the prisoner on that Friday morning about eight o'clock between Kendall's and Carlton's going in the direction of Bates Place. I asked him if he had been after the woman. He said no, I have quit that. He was walking. His pants seemed wet with dew." Later Kendall had to admit that the path Tom took from Foster's house was as near as any if he was going to his own house.

If this happened the same day, Tom must have taken his time, as there was less than two miles between Carlton's and Kendall's and Hezeliah Kendall even met him between the houses. Even so Tom had spent almost an hour and a half walking that distance. Even in hill country, it's a long time for such a short stretch on a cleared path. And if we take a closer look at the map drawn by James Isbell, there are several places Tom could have gone, except Bates place, if he actually did walk the path on that specific Friday.

The next witness was Mrs James Scott (Celia). She saw Tom that Friday after breakfast, when he came to her house. She invited Tom inside, but he said no, and rested for a couple of minutes on the steps to the house, telling her, that he was looking for her brother George Washington Anderson. Then Tom continued in the direction of the Melton's. Soon after Pauline Foster found him with Ann Melton in her house, and after that she saw him going in the direction of his own home. If Tom actually came from Kendall's place that Friday he must have been just as fast on the last two miles as he was slow on the first two, as he met Kendall around eight, and reached the Melton place soon after eight. The time schedule indicates to me, that the meetings must have taken place on different days and not all of them on that Friday morning.  If the witnesses simply remembered wrong, or moved the meetings to that Friday for a reason, is impossible to tell today, but one thing is certain. Tom didn't have time or possibility to get to Bates place and kill Laura Foster on that Friday morning.

But could he have killed her later that day? I'll look into that next.

He could very well have, but did he?

Mrs. Dula testified: "He ate no dinner (noon meal) and was there (at the house) until sundown or thereabouts. While I was getting supper (evening meal), he started away and stayed off about the barn. He came back to supper. He went to bed as usual. I heard him during the night making a little moan. I went to his bed. He had been complaining of chills....I leaned my face down and kissed him. I did not hear him going out that night, and had no knowledge of his doing so. He was there in the morning until after breakfast." This testimony concerns Tom's whereabouts on Friday when Laura disappeared. During cross-eaxamination Tom's mother added: "Tom went out just at dark that evening and stayed about an hour. He went to bed that night before I did and took his clothes off as usual."

What we can learn from this statement is that Tom probably didn't leave his house on the night between Friday and Saturday. But he did leave the house Friday afternoon or evening, and was away for about an hour. Mrs. Dula thought he was at the barn while another witness testified different.

Laura Foster Ridge

The photo on the left shows the bottom of Laura Foster Ridge. She was buried about 100 yards further up the ridge.

Thomas Foster, Ann Meltons younger brother testified: "On the next day, Friday, after breakfast awhile I saw him coming towards James Melton's. He was on Stony Fork Road before the turning off place to the Bates place. This was on Friday also." This just confirms, what we already know, namely that Tom visited Ann Melton Friday morning after his visit to Mrs. James Scott. But then Thomas Foster continued: "I saw him again on the same day, about sundown, going in the same direction. A quarter of an hour after he passed this last time, I got a horse and went to James Melton's. Dula was not there, Ann Melton was." During cross-examination he added "A person passing our house could go to either Jamers Melton's or the Bates place." This was the time when Mrs. Dula testified that he had left his home. He didn't go to the Melton's so this testimony clearly suggested that he had gone to the Bates place. Unfortunately it did not tell the whole truth. While it is true, that person could go to either the Melton's or Bates Place, he could also have gone to visit Francis Melton, the James Scott's, Carson Dula or even the Griffiths, living on the same road, beyond the Bates place.

Why should Thomas Foster suggest that Tom had gone to the Bates place? Maybe because he and Tom weren't the best of friends. In  the unidentified transcript of Pauline's testimony is a mention of a quarrel between Thomas Foster and Tom Dooley. It says nothing of the subject of the quarrel, but it could have been about Pauline Foster, who they both slept with or maybe Tom having an affair with Thomas Fosters married sister.

One other testimony could be interesting in this context. Jesse Gilbert testified that he (and his brother Carson) on Friday afternoon when the two of them passed Lotty Foster's house had spoken with Mrs. Dula.  Jesse stated: "Carson called to Mrs. Dula and asked her where her son Tom was. She replied that she did not know; she hadn't seen him that day. He was gone to the muster I (Mrs. Dula) expected. This was about 3.00 PM. We walked thirteen miles that evening by dark after seeing her." The latter sentence of the testimony is completely out of context as a lot of the testimonies are. But if Jesse Gilbert was right, Tom could have killed Laura anytime that Friday, but that would mean that Mrs. Dula lied in her testimony.

She later explained: "I did not say in the presence of Carson Gilbert or others that Friday that I did not know where my son Thomas was. I met them (the Gilbert brothers) on the afternoon of that day near Lotty Foster's on the path between her house and mine. I had walked out to look for my cows. In reply to an inquiry made of me, I told them, I did not know where Thomas was unless he had gone to the muster.' I did that at his request, as he said he was too unwell to go to the muster, and did not want to be bothered by people making inquiries." Unfortunately this doesn't make it any clearer about Tom's whereabouts on Friday afternoon. Mary Dula denied having said that she didn't know where Tom was, and then she continued to tell, that she said she didn't know where Tom was!, It is clear that she meant, something like "I think he had gone to the Muster", and that Tom had asked her to say that. One of the rich landowners from the valley, Rufus D. Horton, stated the following, in his testimony, right after this: "I know the general character of Jesse Gilbert. It is bad for stealing and lying." In an earlier statement he had said that he was acquainted with the general character of Mrs. Mary Dula and that it was good for truth and honesty. He had never heard her honesty doubted.

So maybe Jesse Gilbert was lying and Mary Dula telling the truth? In that case Tom had to have killed and burried Laura Foster in less than one hour. He could of course have killed her in the early evening and then burried her later at night, but his mother observed him in his bed one or more times during the night. In modern days, someone has tried to carry the weight and form of a body from the Bates place through the woods to where the grave was found. It appeared to be very hard work, and would have taken one man far more than one hour. And in this case, they didn't have to kill the victim first. Also you have to ask yourself, why Laura Foster should be willing to wait at Bates place from early in the morning to late at night, if she was going away with Tom Dooley. Why didn't she want to leave at once, or wait until the next evening before running away from home?

All in all, I don't think Tom had the opportunity to kill and bury Laura Foster the way the prosecution though he did. But then did he kill her in another way or did someone else? I will get back to that in later articles, where I will also take a closer look at more of the legal matter of the case.

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